Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 400-419)


10 MARCH 2008

  Q400  Earl of Onslow: What was that? The fishing boat case was the important one, was it not?

  Ms O'Neill: Yes.

  Q401  Earl of Onslow: But since then John Laws has said that if that Act had said "irrespective of the 1971 Act" it would have been a sovereign Act of Parliament. I think that should be always borne in mind when we discuss these things.

  Ms O'Neill: I suspect there are books we could write on this particular topic. In terms of the balance between the judiciary and the legislature, it is not inconceivable that a power to strike down legislation as being incompatible could co-exist with the supremacy of Parliament. As things currently stand, if an Act of the UK Parliament is found to be incompatible with the Convention then the most that a court can do is make a declaration of incompatibility. There is nothing conceptually which would prevent an amendment which would have the result of allowing the courts to strike down that legislation but leave it open to Parliament to reinstate that legislation by, for example, a greater than absolute majority if that was one way of looking to protect the rights of an individual who was affected by the breach. There are different ways in which you could order things so as to provide both a judicial power of strike-down but retain the ultimate supremacy of Parliament should Parliament decide to reinstate that legislation.

  Earl of Onslow: An easy way of doing that is to make a law not subject to the Parliament Acts of 1911 and 1949.

  Chairman: That is you trying to entrench your position, is it?

  Q402  Lord Dubs: You have just said the courts do not have the power to strike down Scottish legislation.

  Ms O'Neill: My apologies. The Scottish courts do not have the power to strike down Acts of the UK Parliament. They have power to strike down Acts of the Scottish Parliament.

  Q403  Lord Dubs: But there has been no occasion when they have done so?

  Ms O'Neill: No.

  Q404  Lord Dubs: Therefore it would follow, you would agree, that the courts should also be given the right to strike down legislation if in their view it is contrary to the British Bill of Rights? A bit hypothetical, that.

  Ms O'Neill: Yes.

  Q405  Lord Dubs: There is no reason why that should not be the practice?

  Ms O'Neill: No, none at all.

  Chairman: But only if the Bill of Rights applies in Scotland, which goes back to my earlier question.

  Q406  Lord Dubs: Yes, of course.

  Ms O'Neill: Yes, and, without over-complicating it, of course the Bill of Rights could apply in Scotland in relation to reserved matters but not to devolved matters. It could have partial application.

  Mr Clancy: I think that is the Government's intention, that the Green Paper will have application to reserved matters rather than devolved matters. There was an indication given after a speech by Michael Wills MP on Wednesday last week at the Constitutional Unit.

  Q407  John Austin: Does it matter whether they are devolved or reserved matters? One of the witnesses has said to us that as human rights are not reserved to Westminster the Scottish Parliament's consent would be required for the enactment of any British Bill of Rights. Is that your interpretation?

  Ms O'Neill: That is a matter of politics rather than law. As a matter of political convention the Scottish Parliament's consent is sought whenever Westminster legislates on something which the Parliament could itself legislate about, but that has no legal foundation.

  Q408  John Austin: Let me take it further to clear my mind. Reference was made to the UN Convention on the Rights of the Child. In ratifying that Convention it would be the UK Parliament that ratified on behalf of the UK, but the Home Secretary has said that the UK will ratify by the end of this year the Convention on trafficking, which will be therefore legally binding not only on British institutions but also on Scottish institutions which are responsible for delivering certain services, so is the Scottish Parliament's consent required for the UK's ratification of the Convention on trafficking, for example?

  Mr Clancy: No, it is not. That is a prerogative power.

  Q409  Chairman: Even though it would impact on the Scottish legal system?

  Mr Clancy: Yes.

  Q410  John Austin: And you will be responsible for complying?

  Mr Clancy: Yes.

  Earl of Onslow: When the Government signs a treaty the articles in the treaty have to be brought in by legislation rather than by royal prerogative, so presumably the Government signs the treaty, the UK Parliament passes it where England is concerned and the Scottish Parliament passes it where Scotland is concerned.

  Q411  John Austin: If it were, say, the Convention on trafficking, the UK Government are saying it has to be compliant before it can ratify but it cannot be compliant unless it is assured that the devolved Parliaments and Assemblies are also compliant?

  Mr Clancy: Yes, that is right. We were just thinking about an example where a recent treaty has been implemented in the UK. The International Criminal Court came to mind and you will remember that there was legislation to implement that treaty, the Rome Statute, in the Houses of Parliament in 2003, I think it was, and that applied throughout the United Kingdom. But there were also provisions which related exclusively to devolved aspects, and so therefore a Bill was brought forward by now Lord Wallace of Tankerness to implement those provisions in the devolved setting and it related to things like the powers of the police and search warrants and things like that.

  Q412  Earl of Onslow: What happened over the American extradition treaty? Did that apply automatically?

  Mr Clancy: The fact is that in international law the state party to any international treaty is the United Kingdom. When the United Kingdom is bound by that treaty all parts of the United Kingdom are bound by that treaty. If it were the case that a devolved administration, either here, in Belfast or in Cardiff, refused to implement some aspect of an international treaty, then the United Kingdom would be obliged, through the United Kingdom Parliament, to implement it effectively directly through the powers in the Scotland Act. Remember that under section 28(7) of the Scotland Act, "This section does not affect the power in Parliament of the United Kingdom to make laws for Scotland", so the legal position is that the UK Parliament could enact legislation which would apply in Scotland. The Sewel Convention, which operates through a process of legislative consent motions in this Parliament, is one which is a constitutional convention. It is not a matter of law. The matter of law is contained in section 28(7) of the Scotland Act I think that in the unhappy circumstance where an international treaty was being flouted by a devolved administration to the UK's peril by being put in breach of those international obligations the UK would only have one option.

  John Austin: So there is not a requirement of the Sewel Convention? There is a desirability to achieve consensual agreement?

  Q413  Chairman: But the bottom line is that the Westminster Parliament can enforce its will over Scotland if Scotland does not comply with an international treaty requirement.

  Mr Clancy: Section 28(7) is the embodiment and I know the Earl of Onslow will be happy at this, of the supremacy of the United Kingdom Parliament, or the Imperial Parliament!

  Q414  Lord Dubs: Could I go back to something we were discussing a little while ago? If the British Government was set on introducing a Bill of Rights and if there was reasonable support for the principle in Scotland, is it therefore possible that the British Government could have its Bill of Rights but have a Scottish version to allow local circumstances to be included for that part which is applicable to Scotland?

  Ms O'Neill: Yes, there is no reason why not.

  Q415  Lord Dubs: Is that the way forward?

  Mr Clancy: That is a political question.

  Q416  Lord Dubs: It is partly political but partly in terms of the feasibility. It would be quite feasible, would it not, to have a Bill of Rights for England and then, in consultation with Scotland, such changes as were appropriate to Scotland could be added and the whole thing would then stand up legally?

  Mr Clancy: If the Scottish Parliament agreed to that course of action then there would be no let or hindrance on it.

  Q417  Earl of Onslow: The question I would like to ask, and this is again for my own information, for those of us who felt that the American Extradition Act was an act of barbarism, which I do feel, is, did the Scottish Parliament have to change their law for that or does extradition apply?

  Ms O'Neill: My understanding is that extradition is a matter which is reserved to the Westminster Parliament and therefore the Scottish Parliament would have—

  Q418  Earl of Onslow: No say?

  Ms O'Neill: Has no legislative say. I cannot recall whether there was any political debate in this Parliament about the advisability or not of the Extradition Treaty but there would be no legislative input from this Parliament in terms of ratifying that treaty.

  Q419  Chairman: That is our questions exhausted. Is there anything you would like to add to anything you have had to say to us today, which we think has been very helpful?

  Mr Clancy: No, I do not think so. Thank you very much for your consideration and for your interesting questions.

  Chairman: Thank you for your interesting answers.

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